Agriculture, Forestry, and Fishing Research at NIOSH: Reviews of Research Programs of the National Institute for Occupational Safety and Health (2008)

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F Policies and Regulations Affecting the Agriculture, Forestry, and Fishing Workforce “The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor condi- tions detrimental to the maintenance of the minimum standard of living for health, efficiency, and general well-being of workers . . .” Fair Labor Standards Act of 1938 (29 USC 201 et seq.) PUBLIC POLICY AND REGULATORY ADVICE The National Institute for Occupational Safety and Health (NIOSH) is uniquely positioned to offer independent, scientifically founded assessments of the effective- ness of public policy with respect to risk factors in workplace injury or illness. The agriculture, forestry, and fishing (AFF) sector presents a distinctly difficult set of circumstances for making such determinations. This appendix describes the legal framework within which NIOSH research informs policy discourse in law and regu- lation, then reviews and evaluates NIOSH contributions to policy and regulation, and finally offers suggestions for new policy-oriented research initiatives. The AFF sector differs markedly from most other industry sectors in which fixed-worksite “brick and mortar” facilities are the norm. First, because the AFF sec- tor is based on production from natural resources, there are millions of individual worksites to consider: crop and livestock fields scattered throughout the nation, 317 

318 A g r i c u lt u r e , F o r e s t r y , and Fishing Research at NIOSH vast forests, and seemingly endless open waters. Second, most of the more than 1 million businesses engaged in this sector are small, family-operated enterprises, a great many of which are part-time businesses or active only on a seasonal basis. Third, only businesses directly engaged in or producing commodities for interstate commerce have traditionally been subject to federal regulation owing to significant constitutional questions regarding federal jurisdiction. Finally, many, if not a ma- jority, of the estimated several million people working as hired laborers in the AFF sector today are immigrants who are not authorized for employment in the United States, and this greatly complicates surveillance and arguably weakens a regulatory system based on self-reported complaints. Although the current number of hired farm workers is not accurately known, as of 1992 it was authoritatively estimated to be 2.5 million (U.S. Commission on Agricultural Workers, 1992). It is important to note that federal policy regarding workplace safety and health in most industry sectors, including AFF, was relatively limited until enactment of the Occupational Safety and Health Act of 1970 (29 USC 651-678). That statute mandated establishment of the Occupational Safety and Health Administration (OSHA), a regulatory agency, and NIOSH, an independent research agency. The law explicitly directed NIOSH to conduct research, directly or through grants or contracts, related to occupational safety and health. It was expected that NIOSH, among its principal activities, would provide independent research to inform OSHA’s regulatory decisionmaking. Later, Congress intervened to weaken the original law, exempting “small farms” from OSHA and NIOSH jurisdiction. Specifically, the annual farming appropria- tions rider states that “none of the funds appropriated under this paragraph [OSHA funds] shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, or order under the Occupational Safety and Health Act of 1970 which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs ten or fewer employees.” The pattern of explicitly exempting large portions of AFF industries from federal laws that govern all other industries has a long history. The National Labor Relations Act of 1935 (29 USC 151-169), which affirms the right of most U.S. workers to engage in concerted action on their own behalf through organizations of their choosing, does not apply to any person employed as a hired farm laborer. Federal governance of workplace conditions was first delineated by the Fair Labor Standards Act of 1938 (FLSA, 29 USC 201-219), which addresses such im- portant occupational safety issues as child labor, wages and hours of work, and appropriate ages for operating hazardous machinery. In general, “all employees of a farm are covered under the FLSA on an enterprise basis if the annual gross  See 29 CFR Parts 500-870; http://www.dol.gov/dol/allcfr/ESA/Title_29/Chapter_V.htm. 

A pp e n d i x F 319 volume of sales made or business done by the enterprise that owns the farm is not less than $500,000 . . . and the enterprise employs workers engaged in commerce, or the production of goods for commerce” (DOL, 2004). Roughly one-fourth of U.S. farms (27 percent) directly hire farm laborers, but only one-ninth (11 percent) of farms with hired-labor expenses (60,646 of 554,434 farms) had cash receipts from the sale of agricultural commodities amounting to $500,000 or more in 2002 (USDA, 2004). An additional but unknown number of farm operators rely on indirectly hired farm laborers, described as contract labor, usually through a labor-market intermediary, such as a farm labor contractor. Thus, at least 89 percent of farms with hired or contract laborers are exempted from FLSA regulation by the farm-sales size limitation. However, farms subject to federal regulation account for over two-thirds (71 percent) of all direct-hire farm- labor payroll. It is not known what fraction of all hired and contract laborers are employed on farms that are exempted. Much of the basis of exempting smaller-scale farming businesses from FLSA and OSHA regulation was originally motivated by an interest among policy­makers not to unduly burden farms that were, at least in 1938, the major source of Ameri- can food production. But the dominance of American agriculture by small farms has long since passed. According to the 2002 Census of Agriculture, if all farms are ranked in descending order by size of cash receipts from sales of agricultural com- modities, the largest 6.7 percent of all American farms accounted for 75 percent of all farm sales. The 1987 Census of Agriculture reported that the largest 13.3 percent of all farms accounted for 75 percent of farm sales. Thus, size concentra- tion in American agriculture has roughly doubled in just 15 years. Clearly, small farms have become less and less important. STATUTORY EXEMPTIONS OF CHILD LABOR FROM THE FAIR LABOR STANDARDS ACT Despite the clear delineation of which farms are subject to federal regulation, there are numerous additional statutory exemptions of various categories of hired farm workers from the protections of the FLSA (DOL, 2007a). Exemptions from the FLSA for agricultural workers include allowing children 14 and 15 years old to be employed for unlimited periods outside local school hours. Similarly, “minors who are at least 16 years of age may perform any farm job, including agricultural occupations declared hazardous by the Secretary of Labor, at any time, including during school hours” (DOL, 2007a). Minors under 14 years old may also work in agriculture under any of the fol- lowing statutory exemptions from the child labor provisions of the FLSA: 

320 A g r i c u lt u r e , F o r e s t r y , and Fishing Research at NIOSH • Minors 12 and 13 years old may work outside school hours with written parental consent or on farms where parents are employed. • Minors under 12 years old may work outside school hours with written parental consent on farms not subject to the minimum wage. • Local minors 10 and 11 years old may work outside school hours under prescribed conditions to hand-harvest crops with short harvesting seasons for not more than 8 weeks from June 1 to October 15 on approval by the Secretary of ­Labor of an employer’s application for a waiver from the child labor provisions for employment of such children. As described in a special report on child labor in agriculture prepared by the General Accounting Office (GAO, now the Government Accountability Office) in response to a specific request from Congress (GAO, 1998), a 13-year-old may not, under federal law, be employed to perform clerical work in an office but may be employed to pick strawberries in a field. A 16-year-old may not operate a power saw or a forklift in a warehouse but may operate either on a farm. . . . Under current law, a 14-year-old hired to work in a retail establishment may work only between the hours of 7 a.m. and 7 p.m. (9 p.m. in the summer) and may not work more than 18 hours in a school week or 3 hours in a school day; the same child may work an unlimited number of hours picking grapes as long as he or she is not working during school hours. The GAO report concludes, “children may work in agriculture in circumstances that would be illegal in other industries.” Some may be under the mistaken impression that those statutory exemptions apply only to children of farmers or ranchers. It was undoubtedly the case in 1938 when the FLSA was enacted that the exemptions were intended mostly to benefit family-operated farms, but small-scale family farms are no longer the major fac- tor in agricultural production, as was the case 70 years ago. In fact, most children who work in agriculture today are hired laborers. The GAO report finds that an estimated 155,000 15- to 17-year-olds worked in agriculture in 1997, and 116,000 of these were hired farm laborers; only 39,000 were self-employed and unpaid family workers (GAO, 1998). EXEMPTIONS OF HIRED FARM LABOR FROM OVERTIME AND MINIMUM-WAGE RULES Under the FLSA, employers are generally required to compensate workers at no less than 1.5 times the regular pay rate for any employment in any workweek after 

A pp e n d i x F 321 40 hours. But the entitlement to receive overtime compensation does not apply to any worker employed in farming or to employees engaged in the transportation or preparation for transportation of fruits and vegetables from the farm to the place of first processing or first marketing within the same state. Also exempted from the overtime regulation are irrigators (often, irrigators in many western states are obliged by their employers to keep a round-the-clock watch during the period when water is delivered from a ditch or canal to a particular farm property). The FLSA also established a federal minimum wage rate. But only farm opera- tors who used 500 worker-days or more of agricultural labor during any calendar quarter of the preceding calendar year are subject to the federal minimum wage provision unless their employees are otherwise explicitly excluded by statute. Examples of additional hired workers statutorily excluded from federal mini- mum wage protection include • Local hand-harvest workers who are paid a piece rate and who worked fewer than 13 weeks in agriculture during the preceding calendar year. • Members of the employer’s immediate family. • Migrant hand-harvest workers 16 years old and younger who are employed on the same farm as their parents, or persons standing in place of their parents, and who receive the same piece rates as employees more than 16 years old working on the same farm. • Workers engaged mainly in the range production of livestock. Finally, the so-called “youth minimum wage” allows payment of a submini- mum wage of $4.25 to any worker under 20 years old during his or her first consecutive 90 calendar days of employment with an employer (at this writing, the federal minimum wage is $5.85) (DOL, 2007b). That provision applies to all industry sectors, but agriculture is the only sector that allows very young children to be employed at all. SUPERSEDING OF FEDERAL LAWS BY STATE WORKPLACE LAWS California was arguably the first state to enact law addressing unhealthful conditions among AFF workers. In 1915, in response to public outcry over hor- rific labor-camp conditions at a northern California farm and a violent confron- tation between several thousand workers and sheriffs at the camp, known as the Wheatland Hop Riot of 1913, the California legislature enacted the Labor Camp  FLSA, Sec. 13(b)(12). 

322 A g r i c u lt u r e , F o r e s t r y , and Fishing Research at NIOSH Act, setting minimum sanitary standards that farmers and others must meet when housing their employees. It is important that when a state law governing workplace conditions differs from a federal law, the law that provides more protection or a higher standard ap- plies. Thus, contrary to the OSHA small-farm exemption, California law does not exempt farms with 10 or fewer workers from occupational safety regulation by the California Division of Occupational Safety and Health (known as Cal/OSHA). Similarly, young child workers in the state are required to present prospective employers with currently valid work permits, signed by both local school authori- ties and a parent, to be eligible for employment. And California’s state minimum wage, $7.50 per hour at this writing and scheduled to increase to $8.00 per hour on January 1, 2008, is applicable to all hired workers, including those employed on farms. In contrast, California law regarding overtime pay in agriculture, although stricter than the federal provision excluding farm laborers, specifies compensation at 1.5 times the regular pay rate only on the seventh day after six consecutive 10- hour days of work. Virtually all other workers in California qualify for overtime pay after 8 hours of work on any day. A comprehensive summary of federal and state laws governing hired farm workers was published in 1988 (Craddock, 1988). A number of new laws and regulations affecting farm labor workplaces in recent years make portions of that review outdated. There is no comparable review of law and regulation governing the forestry and fishing industries. OTHER FEDERAL LAWS GOVERNING WORKPLACE CONDITIONS IN THE AGRICULTURE, FORESTRY, AND FISHING SECTOR A number of other federal laws that govern workplace conditions authorize additional agencies to maintain compliance oversight of some AFF worksites. The U.S. Environmental Protection Agency, under the federal Worker Protection Standard, is responsible for ensuring safe workplace conditions when dangerous pesticides are mixed, loaded, or applied. The Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) authorizes the Department of Labor (DOL) to promote and enforce regulations covering a variety of workplace conditions, including transportation to and from work that is provided by farm employers or their agents, farm labor housing provided by farm employers or their agents, registration of farm labor contractors and their agents, and notice to workers of their rights and responsibilities under U.S. law.  Cf. 29 CFR Parts 500-501. 

A pp e n d i x F 323 There may be some misunderstanding among NIOSH staff on this point inas- much as the evidence package presented to the present committee states that the MSAWPA “provides that employment-related protection for migrant and seasonal agricultural workers is administered and enforced by the DOL Employment Stan- dards Administration.” In fact, the Wage and Hour Division of DOL’s Employment Standards Administration has responsibility for enforcement of the FLSA provi- sions pertaining to agriculture for all hired farm workers (except those exempted by statute), not just those deemed “migrant and seasonal” under the MSAWPA. The committee noted some additional possible misunderstandings regarding hired workers in the AFF sector. In discussions of child workers, AFF program de- scriptions consistently refer to children and adolescents under the age of 20 years with respect to both farm residents and youths performing work on farms. But child labor refers exclusively to children, legally known as “minors”, that is, persons under 18 years old. Another possible misunderstanding concerns enforcement of occupational safety regulations. The evidence package states, “OSHA lacks authority for most of the agricultural workforce since much of that workforce is self-employed or consists of unpaid family labor, and OSHA is restricted from inspecting farms that employ fewer than 11 workers at those worksites.” But FLSA statutory exemptions govern child labor on all farms, not only those on small farms. In some impor- tant farm states, such as California, OSHA has delegated regulatory authority to a state agency, in this case Cal/OSHA, which under state law authorizes inspections on all farms that employ hired workers, not only those employing more than 10 workers. A more serious misunderstanding concerns the statement in the evidence pack- age regarding the FLSA: “The Federal Fair Labor Standards Act applies to migrants and local residents regardless of farm size or the number of person-days of farm labor used on that farm. However, these standards do not apply to youth working on family farming operations.” Neither statement is true as written. The AFF evidence package inappropriately makes the general statement that “regulating at the State level has been ineffective.” That is not true in California, Washington, and possibly other states. In fact, some would argue that state regula- tion in California and Washington is far more effective than federal regulation in states where only federal OSHA law applies. Finally, a sweeping statement is made about the availability of data from w ­ orkers’ compensation insurance programs that is simply misleading: “Most f ­ armers, ranchers, fishermen and agricultural workers are not covered by workers’  NIOSH Evidence Package, p. 34.  NIOSH Evidence Package, p. 67.  Ibid, p. 68. 

324 A g r i c u lt u r e , F o r e s t r y , and Fishing Research at NIOSH compensation insurance programs or are not required to report injuries or illnesses to OSHA. Thus, little data are available to estimate the economic losses associated with workplace injuries and illnesses.” The situation is actually more nuanced than those statements in the evidence package suggest. California workers’ compensa- tion insurance data have been widely and successfully used for all the purposes mentioned (Villarejo, 1997). FISHING AND FORESTRY-INDUSTRY WORKERS Fishermen are subject to both OSHA and FLSA laws, with some statutory ex- emptions noted below. The entire industry is also subject to regulation under the Commercial Fishing Industry Vessel Safety Act of 1988 (CFIVSA, 46 USC Chapter 45), the first federal safety law to address the numerous occupational hazards in that industry. The U.S. Coast Guard (USCG) has responsibility for enforcement of the CFIVSA but only to the extent that regulations have been promulgated. USCG has published an excellent summary of the regulations with a comprehensive list of citations to the applicable CFR standards (U.S. Coast Guard, 2001). Maritime- safety regulation governs dockside vessels and land-based fishermen, such as long- shoremen and shipyard workers. OSHA has jurisdiction over fishing vessels within state territorial waters where USCG has not issued regulations. The general industry standards of the OSHA act apply to commercial fishing vessels.10 In addition, OSHA jurisdiction applies to all vessels involved in longshoring operations, whether vessel to shore or vessel to vessel. But USCG is the lead federal agency on the water: its regulations preempt OSHA’s. The list of agencies with authority over one or another aspect of commercial fishing activities is long. Some fishing vessels also process their catch onboard while at sea, and this triggers regulation under the authority of the Food and Drug Administration. The U.S. Environmental Protection Agency governs the relation- ship between commercial fishing activities and their impact on the environment. A knowledgeable safety professional, responsible for a large commercial fishing operation, informed the committee that he could recall having representatives of four agencies onboard a 120-ft fishing vessel at one time. Because OSHA and USCG have distinct responsibilities for vessel safety under different federal laws, separate shipboard inspections by each agency may allow some unsafe practices to be unintentionally overlooked. For example, during a  Ibid, p. 68.  Cf. 46 CFR Part 28.  Cf. 29 CFR Parts 1915-1919. 10 Cf. 29 CFR Part 1910. 

A pp e n d i x F 325 compliance visit on a vessel, OSHA inspectors do not determine whether life rafts conform to CFIVSA regulations, which are subject to USCG authority, but will examine such issues as matters of fall-protection safety. A complex set of occupational safety standards apply to the fishing industry, reflecting in part, the large variance in types of commercial fishing vessels. Regu- lations regarding specific types of lifesaving and other equipment, training, and workplace protective standards are determined by a vessel’s size or the number of onboard personnel. Thus, shorter vessels or those carrying few workers are not held to the same standard as larger vessels with more workers. Commercial fishing boat and diving operations with 10 or fewer employees have been exempted from OSHA safety inspections, as in agriculture, by an an- nual appropriations rider in Congress (Noll, 1994). Also statutorily exempt from the FLSA minimum wage requirement is “any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee . . . ”11 Forestry industry workers are subject to the OSHA act12 and the FLSA. But forestry and logging workers employed by a firm with eight or fewer employees are exempt by statute from the overtime pay requirements of the FLSA.13 States with major logging industries also have substantial regulatory and oversight responsibil- ities, as approved under agreement with OSHA. A number of states—for example, Idaho, Oregon, and Washington—have developed their own safety standards for forestry and logging workers. In fact, Oregon’s logging code was established well before enactment of the OSHA act in 1970. An unusual aspect of forest work is the contracting of some activities by private-sector employers and the USDA Forest Service to labor contractors. The employer of record in such a circumstance is often a very small business with small assets, if any. The vastness of forest activities makes it difficult to regulate or provide timely oversight of them. Many of the tasks performed by the workers are identi- cal with agricultural tasks: planting, thinning, and weeding. MSAWPA regulation therefore applies to contract forest workers. 11 FLSA, Sec. 13(a)(5). 12 Cf.29 CFR Part 1910.266. 13 FLSA, Sec. 13(b)(28).